Sunday, August 24, 2014

Madison: The Danger of Locating the War Power in the Executive

In 1793. after Alexander Hamilton published his Pacificus essays in defense of President Washington’s Proclamation of Neutrality, Jefferson urged Madison to take up his pen to strike down Hamilton’s heresies. Madison’s response in his Letters of Helvidius was incredibly prolix and difficult for most mortals to understand, but in a few passages he lucidly laid bare “the fundamental doctrine of the constitution” locating the power to declare war in the legislature:

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Every just view that can be taken of this subject, admonishes the public, of the necessity of a rigid adherence to the simple, the received and the fundamental doctrine of the constitution, that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature: that the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war: that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper: and that for such more than for any other contingency, this right was specially given to the executive.
In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man: not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.

As the best praise then that can be pronounced on an executive magistrate, is, that he is the friend of peace; a praise that rises in its value, as there may be a known capacity to shine in war: so it must be one of the most sacred duties of a free people, to mark the first omen in the society, of principles that may stimulate the hopes of other magistrates of another propensity, to intrude into questions on which its gratification depends. If a free people be a wise people also, they will not forget that the danger of surprise can never be so great, as when the advocates for the prerogative of war, can sheathe it in a symbol of peace.

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Letters of Helvidius, No. IV, August-September 1793, The Writings of James Madison, Galliard Hunt, ed. (1906), VI: 174-75. (Online Library of Liberty)

Vattel: Rights and Duties of Nations

Emer de Vattel, a Swiss writer, published in 1758 The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. The work was widely used in the United States in the era of independence and constitution-making. Vattel was, as Alexander Hamilton remarked, “perhaps the most accurate and approved of the writers on the law of Nations.” Jefferson, insisting that U.S. policy “is dictated by the law of nature and the usage of nations,” believed that no judge of this law was more “enlightened and disinterested” than Vattel. The law of nations was considered authoritative by the Founders. “Ever since we have been an Independent nation,” Hamilton observed, “we have appealed to and acted upon the modern law of Nations as understood in Europe. Various resolutions of Congress during our revolution—the correspondencies of Executive officers—the decisions of our Courts of Admiralty, all recognized this standard.” So, too, did the “executive and legislative Acts and the proceedings of our Courts under” the new government of 1789.
These excerpts from Vattel’s famous work (from the Liberty Fund reprint) are about 6900 words.
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PRELIMINARIES: Idea and general Principles of the Law of Nations

To establish on a solid foundation the obligations and rights of nations, is the design of this work. The law of nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.
In this treatise it will appear, in what manner states, as such, ought to regulate all their actions. We shall examine the obligations of a people, as well towards themselves as towards other nations; and by that means we shall discover the rights which result from those obligations. For, the  right being nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty,—it is evident that right is derived from duty, or passive obligation,—the obligation we lie under to act in such or such manner. It is therefore necessary that a nation should acquire a knowledge of the obligations incumbent on her, in order that she may not only avoid all violation of her duty, but also be able distinctly to ascertain her rights, or what she may lawfully require from other nations. 

Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature,—nations or sovereign states are to be considered as so many free persons living together in the state of nature.

It is a settled point with writers on the natural law, that all men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent. In a state, the individual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to the sovereign. But the body of the nation, the state, remains absolutely free and independent with respect to all other men, all other nations, as long as it has not voluntarily submitted to them.

As men are subject to the laws of nature,—and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be men,—the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings. And since right arises from obligation, as we have just observed (§3), the nation possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties.

We must therefore apply to nations the rules of the law of nature, in order to discover what their obligations are, and what their rights: consequently the law of nations is originally no other than the law of nature applied to nations. But as the application of a rule cannot be just and reasonable unless it be made in a manner suitable to the subject, we are not to imagine that the law of nations is precisely and in every case the same as the law of nature, with the difference only of the subjects to which it is applied, so as to allow of our substituting nations for individuals. A state or civil society is a subject very different from an individual of the human race: from which circumstance, pursuant to the law of nature itself, there result, in many cases, very different obligations and rights; since the same general rule, applied to two subjects, cannot produce exactly the same decisions, when the subjects are different; and a particular rule which is perfectly just with respect to one subject, is not applicable to another subject of a quite different nature. There are many cases, therefore, in which the law of nature does not decide between state and state in the same manner as it would between man and man. We must therefore know how to accommodate the application of it to different subjects; and it is the art of thus applying it with a precision founded on right reason, that renders the law of nations a distinct science.

We call that the necessary law of nations which consists in the application of the law of nature to nations. It is necessary, because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obligatory than on individuals, since states are composed of men, their resolutions are taken by men, and the law of nature is binding on all men, under whatever relation they act. This is the law which Grotius, and those who follow him, call the internal law of nations, on account of its being obligatory on nations in point of conscience. Several writers term it the natural law of nations.

Since therefore the necessary law of nations consists in the application of the law of nature to states,—which law is immutable, as being founded on the nature of things, and particularly on the nature of man,—it follows, that the necessary law of nations is immutable.

Nations can make no change in it, nor dispense with the obligations arising from it.

Whence, as this law is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.

This is the principle by which we may distinguish lawful conventions or treaties from those that are not lawful, and innocent and rational customs from those that are unjust or censurable.

There are things, just in themselves, and allowed by the necessary law of nations, on which states may mutually agree with each other, and which they may consecrate and enforce by their manners and customs. There are others, of an indifferent nature, respecting which, it rests at the option of nations to make in their treaties whatever agreements they please, or to introduce whatever custom or practice they think proper. But every treaty, every custom, which contravenes the injunctions or prohibitions of the necessary law of nations, is unlawful. It will appear, however, in the sequel, that it is only by the internal law, by the law of conscience, such conventions or treaties are always condemned as unlawful,—and that, for reasons which shall be given in their proper place, they are nevertheless often valid by the external law. Nations being free and independent,—though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to acquiesce in it, when it does not infringe upon their perfect rights. The liberty of that nation would not remain entire, if the others were to arrogate to themselves the right of inspecting and regulating her actions;—an assumption on their part, that would be contrary to the law of nature, which declares every nation free and independent of all the others.

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BOOK I, CHAPTER II: General Principles of the Duties of a Nation towards itself.

If the rights of a nation spring from its obligations, it is principally from those that relate to itself. It will further appear that its duties towards others depend very much on its duties towards itself, as the former are to be regulated and measured by the latter. As we are then to treat of the obligations and rights of nations,—an attention to order requires that we should begin by establishing what each nation owes to itself.
The general and fundamental rule of our duties towards ourselves is, that every moral being ought to live in a manner conformable to his nature, naturae convenienter vivere. A nation is a being determined by its essential attributes, that has its own nature, and can act in conformity to it. There are then actions of a nation as such, wherein it is concerned in its national character, and which are either suitable or opposite to what constitutes it a nation; so that it is not a matter of indifference whether it performs some of those actions, and omits others. In this respect, the Law of Nature prescribes it certain duties. We shall see, in this first book, what conduct a nation ought to observe, in order that it may not be wanting to itself. But we shall first sketch out a general idea of this subject.
He who no longer exists can have no duties to perform: and a moral being is charged with obligations to himself, only with a view to his perfection and happiness: for to preserve and to perfect his own nature, is the sum of all his duties to himself.
The preservation of a nation consists in the duration of the political association by which it is formed. If a period is put to this association, the nation or state no longer subsists, though the individuals that composed it, still exist.
The perfection of a nation is found in what renders it capable of obtaining the end of civil society; and a nation is in a perfect state, when nothing necessary is wanting to arrive at that end. We know that the perfection of a thing consists, generally, in the perfect agreement of all its constituent parts to tend to the same end. A nation being a multitude of men united together in civil society,—if in that multitude all conspire to attain the end proposed in forming a civil society, the nation is perfect; and it is more or less so, according as it approaches more or less to that perfect agreement. In the same manner its external state will be more or less perfect, according as it concurs with the interior perfection of the nation.
The end or object of civil society is to procure for the citizens whatever they stand in need of, for the necessities, the conveniences, the accommodation of life, and, in general, whatever constitutes happiness,—with the peaceful possession of property, a method of obtaining justice with security, and, finally a mutual defence against all external violence.
It is now easy to form a just idea of the perfection of a state or nation:—every thing in it must conspire to promote the ends we have pointed out.
In the act of association, by virtue of which a multitude of men form together a state or nation, each individual has entered into engagements with all, to promote the general welfare; and all have entered into engagements with each individual, to facilitate for him the means of supplying his necessities, and to protect and defend him. It is manifest that these reciprocal engagements can no otherwise be fulfilled than by maintaining the political association. The entire nation is then obliged to maintain that association; and as their preservation depends on its continuance, it thence follows that every nation is obliged to perform the duty of self-preservation.
This obligation, so natural to each individual of God’s creation, is not derived to nations immediately from nature, but from the agreement by which civil society is formed: it is therefore not absolute, but conditional,—that is to say, it supposes a human act, to wit, the social compact. And as compacts may be dissolved by common consent of the parties,—if the individuals that compose a nation should unanimously agree to break the link that binds them, it would be lawful for them to do so, and thus to destroy the state or nation; but they would doubtless incur a degree of guilt, if they took this step without just and weighty reasons; for civil societies are approved by the Law of Nature, which recommends them to mankind, as the true means of supplying all their wants, and of effectually advancing towards their own perfection. Moreover civil society is so useful, nay so necessary to all citizens, that it may well be considered as morally impossible for them to consent unanimously to break it without necessity. But what citizens may or ought to do,—what the majority of them may resolve in certain cases of necessity, or of pressing exigency,—are questions that will be treated of elsewhere: they cannot be solidly determined without some principles which we have not yet established. For the present, it is sufficient to have proved, that, in general, as long as the political society subsists, the whole nation is obliged to endeavour to maintain it.

If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its members. The nation owes this to itself, since the loss even of one of its members weakens it, and [6] is injurious to its preservation. It owes this also to the members in particular, in consequence of the very act of association; for those who compose a nation are united for their defence and common advantage; and none can justly be deprived of this union, and of the advantages he expects to derive from it, while he on his side fulfils the conditions.
The body of a nation cannot then abandon a province, a town, or even a single individual who is a part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons founded on the public safety.
Since then a nation is obliged to preserve itself, it has a right to every thing necessary for its preservation. For the Law of Nature gives us a right to every thing, without which we cannot fulfil our obligation; otherwise it would oblige us to do impossibilities, or rather would contradict itself in prescribing us a duty, and at the same time debarring us of the only means of fulfilling it. It will doubtless be here understood, that those means ought not to be unjust in themselves, or such as are absolutely forbidden by the Law of Nature. As it is impossible that it should ever permit the use of such means,—if on a particular occasion no other present themselves for fulfilling a general obligation, the obligation must, in that particular instance, be looked on as impossible, and consequently void.
By an evident consequence from what has been said, a nation ought carefully to avoid, as much as possible, whatever might cause its destruction, or that of the state, which is the same thing.
A nation or state has a right to every thing that can help to ward off imminent danger, and keep at a distance whatever is capable of causing its ruin; and that from the very same reasons that establish its right to the things necessary to its preservation.
The second general duty of a nation towards itself is to labour at its own perfection and that of its state. It is this double perfection that renders a nation capable of attaining the end of civil society: it would be absurd to unite in society, and yet not endeavour to promote the end of that union.
Here the entire body of a nation, and each individual citizen, are bound by a double obligation, the one immediately proceeding from nature, and the other resulting from their reciprocal engagements. Nature lays an obligation upon each man to labour after his own perfection; and in so doing, he labours after that of civil society, which could not fail to be very flourishing, were it composed of none but good citizens. But the individual finding in a well regulated society the most powerful succours to enable him to fulfil the task which Nature imposes upon him in relation to himself, for becoming better, and consequently more happy,—he is doubtless obliged to contribute all in his power to render that society more perfect.
All the citizens who form a political society, reciprocally engage to advance the common welfare, and as far as possible to promote the advantage of each member. Since then the perfection of the society is what enables it to secure equally the happiness of the body and that of the members, the grand object of the engagements and duties of a citizen is to aim at this perfection. This is more particularly the duty of the body collective in all their common deliberations, and in every thing they do as a body.

A nation therefore ought to prevent, and carefully to avoid, whatever may hinder its perfection and that of the state, or retard the progress either of the one or the other.

We may then conclude, as we have done above in regard to the preservation of a state (§18), that a nation has a right to every thing without which it cannot attain the perfection of the members and of the state, or prevent and repel whatever is contrary to this double perfection. . . .
We shall conclude this chapter, with observing, that a nation ought to know itself. Without this knowledge, it cannot make any successful endeavours after its own perfection. It ought to have a just idea of its state, to enable it to take the most proper measures; it ought to know the progress it has already made, and what further advances it has still to make,—what advantages it possesses, and what defects it labours under, in order to preserve the former, and correct the latter. Without this knowledge, a nation will act at random, and often take the most improper measures. It will think it acts with great wisdom in imitating the conduct of nations that are reputed wise and skilful,—not perceiving that such or such regulation, such or such practice, though salutary to one state, is often pernicious to another. Every thing ought to be conducted according to its nature. Nations cannot be well governed without such regulations as are suitable to their respective characters; and in order to this, their characters ought to be known.
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From BOOK II: Of a Nation considered in its Relations to others, CHAPTER I: Of the Common Duties of a Nation towards others, or of the Offices of Humanity between Nations.

The following maxims will appear very strange to cabinet politicians: and such is the misfortune of mankind, that, to many of those refined conductors of nations, the doctrine of this chapter will be a subject of ridicule. Be it so!—but we will nevertheless boldly lay down what the law of nature prescribes to nations. Shall we be intimidated by ridicule, when we speak after Cicero? That great man held the reins of the most powerful state that ever existed; and in that station he appeared no less eminent than at the bar. The punctual observance of the law of nature he considered as the most salutary policy to the state. In my preface, I have already quoted this fine passage: “A state cannot be happily governed [when] committing injustice; without a strict attention to the most rigid justice, public affairs cannot be advantageously administered.” I might say on good grounds, that, by the words, summa justitia, Cicero means that universal justice which consists in completely fulfilling the law of nature. But in another place he explains himself more clearly on this head, and gives us sufficiently to understand that he does not confine the mutual duties of men to the observance of justice, properly so called. “Nothing,” says he, “is more agreeable to nature, more capable of affording true satisfaction, than, in imitation of Hercules, to undertake even the most arduous and painful labours for the benefit and preservation of all nations.” “It is more in accord with Nature to emulate the great Hercules and undergo the greatest toil and trouble for the sake of aiding or saving the world, if possible, than to live in seclusion, not only free from all care but also reveling in pleasures and abounding in wealth, while excelling others also in beauty and strength. Thus Hercules denied himself and underwent toil and tribulation for the world, and, out of gratitude for his services, popular belief has given him a place in the council of gods. The better and more noble therefore the character with which a man is endowed, the more does he prefer the life of service to the life of pleasure.” In the same chapter, Cicero expressly refutes those who are for excluding foreigners from the benefit of those duties to which they acknowledge themselves bound towards their fellow citizens. “Others again who say that regard should be had for the rights of fellow citizens, but not for foreigners, would destroy the universal brotherhood of mankind; and, when this is annihilated, kindness, generosity, goodness, and justice must utterly perish; and those who work all this destruction must be considered as wickedly rebelling against the immortal gods. For they uproot the fellowship between humans.”
And why should we not hope still to find, among those who are at the head of affairs, some wise individuals, who are convinced of this great truth, that virtue is, even for sovereigns and political bodies, the most certain road to prosperity and happiness? There is at least one benefit to be expected from the open assertion and publication of sound maxims, which is, that even those who relish them the least, are thereby laid under a necessity of keeping within some bounds, lest they should forfeit their characters altogether. To flatter ourselves with the vain expectation that men, and especially men in power, will be inclined strictly to conform to the laws of nature, would be a gross mistake; and to renounce all hope of making impression on some of them, would be to give up mankind for lost.
Nations being obliged by nature reciprocally to cultivate human society (Prelim. §11), are bound to observe towards each other all the duties which the safety and advantage of that society require.
The offices of humanity are those succours, those duties, which men owe to each other, as men, that is, as social beings formed to live in society, and standing in need of mutual assistance for their preservation and happiness, and to enable them to live in a manner conformable to their nature. Now the laws of nature being no less obligatory on nations than on individuals (Prelim. §5), whatever duties each man owes to other men, the same does each nation, in its way, owe to other nations (Prelim. §10, &c.). Such is the foundation of those common duties,—of those offices of humanity,—to which nations are reciprocally bound towards each other. They consist, generally, in doing every thing in our power for the preservation and happiness of others, as far as such conduct is reconcilable with our duties towards ourselves.
The nature and essence of man—who, without the assistance of his fellow men, is unable to supply all his wants, to preserve himself, to render himself perfect, and to live happily—plainly shews us that he is destined to live in society, in the interchange of mutual aid,—and, consequently, that all men are, by their very nature and essence, obliged to unite their common efforts for the perfection of their own being and that of their condition. The surest method of succeeding in this pursuit is, that each individual should exert his efforts, first for himself, and then for others. Hence it follows that whatever we owe to ourselves, we like-wise owe to others, so far as they stand in need of assistance, and we can grant it to them without being wanting to ourselves. Since then one nation, in its way, owes to another nation every duty that one man owes to another man, we may confidently lay down this general principle:—One state owes to another state whatever it owes to itself, so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself. Such is the eternal and immutable law of nature. Those who might be alarmed at this doctrine, as totally subversive of the maxims of sound policy, will be relieved from their apprehensions by the two following considerations—
1. Social bodies or sovereign states are much more capable of supplying all their wants than individual men are; and mutual assistance is not so necessary among them, nor so frequently required. Now, in those particulars which a nation can itself perform, no succour is due to it from others.

2. The duties of a nation towards itself, and chiefly the care of its own safety, require much more circumspection and reserve, than need be observed by an individual in giving assistance to others. This remark we shall soon illustrate.
Of all the duties of a nation towards itself the chief object is its preservation and perfection, together with that of its state. The detail given of them in the first book of this work may serve to point out the several objects in relation to which a state may and should assist another state. Every nation ought, on occasion, to labour for the preservation of others, and for securing them from ruin and destruction, as far as it can do this, without exposing itself too much. Thus, when a neighbouring nation is unjustly attacked by a powerful enemy who threatens to oppress it,—if you can defend it without exposing yourself to great danger, unquestionably it is your duty to do so. Let it not be said, in objection to this, that a sovereign is not to expose the lives of his soldiers, for the safety of a foreign nation with which he has not contracted a defensive alliance. It may be his own case to stand in need of assistance; and consequently he is acting for the safety of his own nation, in giving energy to the spirit and disposition to afford mutual aid. Accordingly, policy here coincides with and enforces obligation and duty. It is the interest of princes to stop the progress of an ambitious monarch who aims at aggrandising himself by subjugating his neighbours. A powerful league was formed in favour of the United Provinces, when threatened with the yoke of Lewis XIV. When the Turks laid siege to Vienna, the brave Sobieski king of Poland saved the house of Austria, and possibly all Germany, and his own kingdom.
For the same reason, if a nation is afflicted with famine, all those who have provisions to spare ought to relieve her distress, without however exposing themselves to want. But if that nation is able to pay for the provisions thus furnished, it is perfectly lawful to sell them to her at a reasonable rate; for they are not bound to furnish her with what she is herself capable of procuring; and consequently there is no obligation of gratuitously bestowing on her such things as she is able to purchase. To give assistance in such extreme necessity is so essentially conformable to humanity, that the duty is seldom neglected by any nation that has received the slightest polish of civilisation. The great Henry the Fourth could not forbear to comply with it in favour of obstinate rebels who were bent on his destruction.
Whatever be the calamity with which a nation is afflicted, the like assistance is due to it. We have seen little states in Switzerland order public collections to be made in behalf of towns or villages of the neighbouring countries, which had been ruined by fire, and remit them liberal succours; the difference of religion proving no bar to the performance of so humane a deed. The calamities of Portugal have given England an opportunity of fulfilling the duties of humanity with that noble generosity which characterises a great nation. On the first intelligence of the disastrous fate of Lisbon [in earthquake of 1755], the parliament voted a hundred thousand pounds sterling for the relief of an unfortunate people; the king also added considerable sums: ships, laden with provisions and all kinds of succours, were sent away with the utmost dispatch; and their arrival convinced the Portuguese, that an opposition in belief and worship does not restrain the beneficence of those who understand the claims of humanity. On the same occasion likewise the king of Spain signally displayed his tenderness for a near ally, and exerted in a conspicuous manner his humanity and generosity.
A nation must not simply confine itself to the preservation of other states; it should likewise, according to its power and their want of its assistance, contribute to their perfection. We have already shewn (Prelim. §13) that natural society imposes on it this general obligation. We are now come to the proper place for treating of the obligation somewhat more in detail. A state is more or less perfect, as it is more or less adapted to attain the end of civil society, which consists in procuring for its members every thing of which they stand in need, for the necessities, the conveniences and enjoyments of life, and for their happiness in general,—in providing for the peaceful enjoyment of property, and the safe and easy administration of justice,—and, finally, in defending itself against all foreign violence (Book I. §15). Every nation therefore should occasionally, and according to its power, contribute, not only to put another nation in possession of these advantages, but likewise to render it capable of procuring them itself. Accordingly, a learned nation, if applied to for masters and teachers in the sciences, by another nation desirous of shaking off its native barbarism, ought not to refuse such a request. A nation whose happiness it is to live under wise laws, should, on occasion, make it a point of duty to communicate them. Thus when the wise and virtuous Romans sent ambassadors to Greece to collect good laws, the Greeks were far from rejecting so reasonable and so laudable a request.
But though a nation be obliged to promote, as far as lies in its power, the perfection of others, it is not entitled forcibly to obtrude these good offices on them. Such an attempt would be a violation of their natural liberty. In order to compel any one to receive a kindness, we must have an authority over him; but nations are absolutely free and independent (Prelim. §4). Those ambitious Europeans who attacked the American nations, and subjected them to their greedy dominion, in order, as they pretended, to civilise them, and cause them to be instructed in the true religion,—those usurpers, I say, grounded themselves on a pretext equally unjust and ridiculous. It is strange to hear the learned and judicious Grotius assert, that a sovereign may justly take up arms to chastise nations which are guilty of enormous transgressions of the law of nature, which treat their parents with inhumanity like the Sogdians, which eat human flesh as the ancient Gauls, &c. [citing Grotius, De Jure Belli et Pacis, book 2, chap. 20, §11.] What led him into this error, was his attributing to every independent man, and of course to every sovereign, an odd kind of right to punish faults which involve an enormous violation of the laws of nature, though they do not affect either his rights or his safety. But we have shewn (Book I. §169) that men derive the right of punishment solely from their right to provide for their own safety; and consequently they cannot claim it except against those by whom they have been injured. Could it escape Grotius, that, notwithstanding all the precautions added by him in the following paragraphs, his opinion opens a door to all the ravages of enthusiasm and fanaticism, and furnishes ambition with numberless pretexts? Mahomet and his successors have desolated and subdued Asia, to avenge the indignity done to the unity of the Godhead; all whom they termed associators or idolaters fell victims to their devout fury. . . .

CHAPTER IV: Of the Right to Security, and the Effects of the Sovereignty and Independence of nations.

In vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible,—what is proper and conformable to our duties. We have then in general a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has therefore a right to prevent other nations from obstructing her preservation, her perfection, and happiness,—that is, to preserve herself from all injuries (§18): and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.
It is safest to prevent the evil, when it can be prevented. A nation has a right to resist an injurious attempt, and to make use of force and every honourable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.
When the evil is done, the same right to security authorises the offended party to endeavour to obtain a complete reparation, and to employ force for that purpose, if necessary.
Finally, the offended party have a right to provide for their future security, and to chastise the offender, by inflicting upon him a punishment capable of deterring him thenceforward from similar aggressions, and of intimidating those who might be tempted to imitate him. They may even, if necessary, disable the aggressor from doing further injury. They only make use of their right in all these measures, which they adopt with good reason: and if evil thence results to him who has reduced them to the necessity of taking such steps, he must impute the consequences only to his own injustice.
If then there is any-where a nation of a restless and mischievous disposition, ever ready to injure others, to traverse their designs, and to excite domestic disturbances in their dominions,—it is not to be doubted that all the others have a right to form a coalition in order to repress and chastise that nation, and to put it forever after out of her power to injure them. Such would be the just fruits of the policy which Machiavel praises in Caesar Borgia. The conduct followed by Philip II. king of Spain, was calculated to unite all Europe against him; and it was from just reasons that Henry the Great formed the design of humbling a power, whose strength was formidable, and whose maxims were pernicious.
The three preceding propositions are so many principles, that furnish the various foundations for a just war, as we shall see in the proper place.

It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury.

The sovereign is he to whom the nation has intrusted the empire, and the care of the government: she has invested him with her rights; she alone is directly interested in the manner in which the conductor she has chosen makes use of his power. It does not then belong to any foreign power to take cognisance of the administration of that sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it. If he loads his subjects with taxes, and if he treats them with severity, the nation alone is concerned in the business; and no other is called upon to oblige him to amend his conduct, and follow more wise and equitable maxims. It is the part of prudence to point out the occasions when officious and amicable representations may be made to him. The Spaniards violated all rules, when they set themselves up as judges of the Inca Athualpa. If that prince had violated the law of nations with respect to them, they would have had a right to punish him. But they accused him of having put some of his subjects to death, of having had several wives, &c.—things, for which he was not at all accountable to them; and, to fill up the measure of their extravagant injustice, they condemned him by the laws of Spain.

But if the prince, by violating the fundamental laws, gives his subjects a legal right to resist him,—if tyranny becoming insupportable obliges the nation to rise in their own defence,—every foreign power has a right to succour an oppressed people who implore their assistance. The English justly complained of James II. The nobility and the most distinguished patriots, having determined to check him in the prosecution of his schemes, which manifestly tended to overthrow the constitution, and to destroy the liberties and the religion of the people,—applied for assistance to the United Provinces. The authority of the prince of Orange had, doubtless, an influence on the deliberations of the states-general; but it did not lead them to the commission of an act of injustice: for when a people from good reasons take up arms against an oppressor, it is but an act of justice and generosity to assist brave men in the defence of their liberties. Whenever therefore matters are carried so far as to produce a civil war, foreign powers may assist that party which appears to them to have justice on its side. He who assists an odious tyrant,—he who declares for an unjust and rebellious people,—violates his duty. But when the bands of the political society are broken, or at least suspended, between the sovereign and his people, the contending parties may then be considered as two distinct powers; and since they are both equally independent of all foreign authority, nobody has a right to judge them. Either may be in the right; and each of those who grant their assistance may imagine that he is acting in support of the better cause. It follows then, in virtue of the voluntary law of nations (see Prelim. §21), that the two parties may act as having an equal right, and behave to each other accordingly, till the decision of the affair.

But we ought not to abuse this maxim, and make a handle of it to authorise odious machinations against the internal tranquillity of states. It is a violation of the law of nations to invite those subjects to revolt who actually pay obedience to their sovereign, though they complain of his government.
The practice of nations is conformable to our maxims. When the German protestants came to the assistance of the reformed party in France, the court never attempted to treat them otherwise than on the usual footing of enemies in general, and according to the laws of war. France was at the same time engaged in assisting the Netherlands then in arms against Spain,—and expected that her troops should be considered in no other light than as auxiliaries in a regular war. But no power ever fails to complain, as of an atrocious wrong, if any one attempts by his emissaries to excite his subjects to revolt.
As to those monsters who, under the title of sovereigns, render themselves the scourges and horror of the human race, they are savage beasts, whom every brave man may justly exterminate from the face of the earth. All antiquity has praised Hercules for delivering the world from an Antaeus, a Busiris, and a Diomede.
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Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. . . Richard Whatmore and Béla Kapossy, eds. (Indianapolis: Liberty Fund) (originally published 1758). I substituted the English translations of Cicero for the Latin in the Vattel's original text. 

Wednesday, August 20, 2014

Madison: Pay Attention to What Other Nations Think

This passage appears in the 63rd number of The Federalist. Madison is explaining the utility of a senate. A nation, he thinks, needs not only to gain the "esteem" of foreign powers but, more importantly, to actually deserve it. Without a senate, "the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence."

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An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?

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Federalist No. 63, Such was the inspiration for another blog of mine, What They Think: A Survey of the Views of Foreign Diplomats and Leaders